Trump Administration Sued Over Phone Searches at U.S. Border

September 13, 2017

By Erik Larson, Bloomberg News

The Trump administration is increasingly allowing federal border agents to seize and search — sometimes violently — the mobile phones and laptops of thousands of U.S. citizens and lawful immigrants as they enter the country, two advocacy groups said in a lawsuit.

The searches at airports and at the Canadian border are being carried out without warrants in violation of the Constitution’s privacy and free speech provisions, the American Civil Liberties Union and the Electronic Frontier Foundation said in complaint filed Wednesday in federal court in Boston.

The groups represent 10 U.S. citizens and one immigrant — among them a military veteran, a journalist and a NASA engineer, the rights groups said in a statement. Several of the citizens are Muslims or people of color.

The lawsuit adds to a growing list of legal challenges to President Donald Trump’s immigration agenda, including a travel ban against several Muslim-majority countries and the halt to a federal program allowing undocumented immigrants who were brought to the U.S. as children, known as Dreamers, to avoid deportation. The administration argues the steps are needed to improve security and stop terrorism, but rights groups say there are limits.

“The government cannot use the border as a dragnet to search through our private data,” ACLU attorney Esha Bhandari said in the statement.

Physically Restrained

One plaintiff, independent filmmaker Akram Shibly, declined to give his phone to Customs and Border Protection agents while he was returning to the U.S. after a social outing in the Toronto area in January, the rights groups said. The officers then physically restrained him and took his phone from his pocket, with one agent choking him and another holding his legs, according to the statement.

“I joined this lawsuit so other people don’t have to have to go through what happened to me,” said Shibly, who is from upstate New York. “Border agents should not be able to coerce people into providing access to their phones, physically or otherwise.”

The lawsuit names as defendants the acting heads of the Department of Homeland Security, Customs and Border Protection and Immigration and Customs Enforcement. Homeland Security spokesman David Lapan declined to comment. Messages to the press offices of the other agencies weren’t immediately returned.

On its website, Customs and Border Protection states it has the authority to search “all persons, baggage, and merchandise arriving in, or departing from, the United States.”

Electronic devices deserve more protection at an airport or a border crossing than a suitcase or a purse due to the “massive” amounts of personal information they contain, including messages to loved ones and private photographs, as well as sensitive medical, legal and financial information, according to the complaint.

Searches Increasing

Such searches are increasing, the rights groups say. Border agents conducted almost 15,000 searches of electronic devices in the first half of 2017, putting the agency on track to conduct about 30,000 searches this fiscal year, the ACLU said, citing government data. That compares to about 8,500 searches in 2015, according to the suit.

The ACLU cited a 2014 U.S. Supreme Court ruling in which the justices unanimously rejected the government’s argument that searching the contents an individual’s mobile phone following an arrest is the same as searching that person’s other physical items that don’t require a warrant.

“That is like saying a ride on horseback is materially indistinguishable from a flight to the moon,” the Supreme Court said in the ruling. “Both are ways of getting from point A to point B, but little else justifies lumping them together.”

The immigration officials put their searches in a different category than those carried out during road arrests, because border agents are tasked with stopping terrorists from entering the U.S. to carry out deadly attacks. In March, Joseph Maher, Homeland Security’s acting general counsel, wrote an op-ed in USA Today that no court has ruled against the agency’s use of warrantless searches of electronic devices at the border. Even so, Maher wrote, the searches affect less than one-hundredth of 1 percent of all travelers arriving in the U.S.

The rights groups claim border agents use coercive tactics to get the passwords of travelers’ mobile devices, such as threatening to confiscate them for months, according to the suit. Officers sometimes keep the items anyway after carrying out manual searches or using sophisticated forensic tools, the groups said.